At Employment Rights Clinic, Practical Training Gets Real

The students in Kevin Kish’s Employment Rights Clinic are charged with formulating assessments in real case of workplace retaliation. Their work has real-life impact when their decisions are adopted by the California Labor Commission.

“They’re judges. They’re making decisions. The labor commissioner reviews their determinations. But if the case doesn’t settle, the students are writing the outcome,” said Adjunct Professor Kevin Kish, also the director of the Employment Rights Project at Bet Tzedek Legal Services. “They’re saying, ‘Yes, we believe that retaliation happened in this case. And here is an order for the employer to comply with to reinstate someone to a job.’ Or they’re saying, ‘No, you employee didn’t meet your burden of proving retaliation, and your claim is dismissed.’

And the power they wield does not go unappreciated. “They’re actually in a position that not only very few students are in, but very few lawyers: They’re in a position of essentially being judges. And when they realize that during the semester, there’s a moment when they freak out. And I think that’s entirely appropriate. It gives you a sense that there’s something really at stake, and you have to use your legal training to say whether someone gets something or not.”

Some retaliation cases offer cut-and-dry examples of workplace retaliation. In one instance, an employer gave an illegal reason for termination in the letter it handed to the terminated employee. “It was a really straightforward call for our students, and they ended up settling that case when the employer realized it was perfectly illegal.”

Most cases are less obvious, challenging students to develop an appropriate outcome. There are cases where an employee was treated unfairly, but it was not illegal. “You feel bad about it. The law doesn’t require employers to be smart, or fair or nice,” said Kish. “They can yell at you. They just can’t retaliate against you because of you’ve asserted a right. And if you haven’t asserted a right, you have no claim.”

Others involve a first impression of law. One instance involved an employee who was fired related to wage garnishment. Federal law protects employee from being fired for one garnishment, but not two. In the absence of state law, students had to do extensive research to find out if the employer’s conduct was legal.

Students’ work on a case starts when they receive a complaint from the labor commissioner. They must rely on two-page forms that contain basic facts about the case. Then the students begin their investigation. Employment Rights Clinic students even impacted the forms used by the Labor Commission, which changed the template for complaint forms based, in part, on students’ examples of what the forms should look like.

The investigation begins by interviewing the plaintiff employee to evaluate his or her case with questions like: “Did you do something that’s protected? Did you complain about your wages? Did you file a complaint with a state or federal agency? Did you report wrongdoing? Was there something bad that happened to you? Were you fired?” said Kish. “And then they interview the employers.”

If the students find that the employer’s conduct was retaliatory, and there is no settlement, students write an opinion. All of this gives students a sense that justice doesn’t just happen in courts. “There are all different kinds of forums, and places and bodies where people’s rights are determined. And they’ll get a sense of some of the ways that things like budgets and staffing affect how people get justice and how quickly.”